UNITED STATES of America, Appellee, v. Robert P. MARCHAND, Jr., Appellant.
No. 1288, Docket 77-1131
United States Court of Appeals, Second Circuit
Argued June 9, 1977. Decided Aug. 22, 1977.
Rehearing and Rehearing En Banc Denied Nov. 1, 1977.
567 F.2d 983
Certiorari Denied Jan. 9, 1978. See 98 S.Ct. 732.
The Federal Rules of Civil Procedure bolster our conclusion.
With regard to Captain Dunbar and his employer, Portland Pilots, Inc., the statute, at least arguably, makes no provision for the liability of the ship‘s agent who caused the spill. Such omission would not help them. We do not believe that the statute was intended to revoke the principles of maritime torts. Cf. State of California v. S.S. Bournemouth, C.D.Cal., 1969, 307 F.Supp. 922. Liability of the ship in rem does not release the pilot from the consequences of his own negligence, People of California v. Italian Motorship Ilice, 9 Cir., 1976, 534 F.2d 836; Gray v. Johansson, 5 Cir., 1961, 287 F.2d 852, cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36, although we note here that while under the statute the government‘s actual costs are the measure, on a maritime tort theory the burden would be on the government to show that its costs were reasonable.
The liability findings and judgments of the district court are vacated. The cause is remanded to that court to dismiss the proceedings against the United States and to determine the cleanup costs incurred by the United States as herein defined, and to enter judgments therefor against the TAMANO, her owners, Portland Pilots, Inc., and Captain Dunbar.
Jill A. Jacobson, Asst. U.S. Atty., District of Vermont (George W. F. Cook, U.S. Atty., District of Vermont, Rutland, Vt., of counsel), for appellee.
Before FRIENDLY, TIMBERS and MESKILL, Circuit Judges.
FRIENDLY, Circuit Judge:
Robert P. Marchand, Jr. appeals from his conviction, after a jury trial before Chief Judge Holden in the District Court for Vermont, on one count of an indictment charging the possession and distribution of 180 pounds of marijuana in violation of
Apart from a serious question under the Fourth Amendment discussed in Part IV below, the appeal has been presented as if this were a case where there is substantial doubt that defendant is the person who committed the crime charged in the indictment. Marchand relies on an array of cases, somewhat weakened as a result of recent Supreme Court decisions, which had laid down stringent requirements to prevent “the awful risks of misidentification” by persons with relatively scant opportunity to observe the defendant, Brathwaite v. Manson, 527 F.2d 363 (2 Cir. 1975), rev‘d, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). But, as the trial judge and the jury seem to have been well aware, that is not this case at all. The case is rather one of accomplice witnesses, one of whom had known the marijuana supplier for years. The jury could well have inferred that any difficulty these witnesses expressed about identification was due to unwillingness rather than inability to identify. It was a similar case of seeming unwillingness that led us, in United States v. De Sisto, 329 F.2d 929 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964), to rule that previous identification or grand jury testimony of a trial witness could be used not simply for “impeachment” but as substantive evidence—a ruling which Congress has now translated into
I. A Chronological Summary
Marchand challenges his conviction on the grounds both of trial error and of insufficiency of the evidence properly admitted.3 Before considering these challenges it will be useful to summarize what admittedly occurred. When we include material that was not before the trial jury, we will so indicate.
Sometime before June 1971, Victor Roy, Jr. became acquainted with a man at bars in Amherst, Mass. When testifying before the grand jury, Roy identified this person as “Big Foot” or “Bob“; at trial he insisted on the appellation “Big Foot“. In March or April, 1975, Roy met the same individual, again in a bar in Brattleboro, Vermont; he was with a girl whom Roy identified before the grand jury as Ann.4 The man gave Roy a telephone number, which Roy called occasionally. In May 1975, Roy, accompanied by Richard Perkins, met the individual at a Howard Johnson‘s restaurant in Springfield, Mass., to discuss the purchase of marijuana. On two occasions within the following three weeks, Roy and Perkins made purchases of marijuana from Big Foot at the Springfield Howard Johnson‘s.
During the period June 9-July 16, 1975, there were four one minute phone calls from Perkins’ number in Waitsfield, Vt., to the numbers listed in the name of Ann Curtis and Robert Marchand in Guilford, which is near Brattleboro, Vermont; there was proof that Bob Marchand was living with Ann Curtis at the time. On July 17 there was a four minute phone call from Perkins’ number to Marchand‘s. The next day, July 18, Perkins and Roy drove to Brattleboro, waited for a while at the Howard Johnson‘s restaurant there, met Big Foot and another male, and then drove out into the country, where 180 pounds of marijuana were transferred from Big Foot‘s car to Perkins‘. On this date there were three phone calls to Ann Curtis’ number in Guilford which were billed to Perkins’ number in Waitsfield. The first, from Perkins’ home phone, lasted three minutes. The other two—each lasting not over one minute—were from Brattleboro, where Perkins and Roy met Big Foot for the marijuana transaction. Perkins and Roy were arrested later in the day when they tried to sell the marijuana to an undercover agent.
Roy refused to make any statement to the arresting officer, Agent Handoga of the Drug Enforcement Administration (DEA). Within two weeks after the arrest, Perkins gave Agent Handoga a description of the seller as “a six foot one, 220 pound man with blond hair“, aged between 25 and 30, and “big features“, defined to include “a big nose, big hands, broad shoulders“. About a month later, Perkins who had some ability as a portraitist, drew a sketch which was designed to be a picture of the marijuana supplier.
Agent Handoga testified at the suppression hearing later referred to that in August 1975 he had received information from an undisclosed source that Marchand was
In September 1975 Perkins testified before a grand jury. He stated that “he found out [Big Foot‘s] name was Bob Marchand.” Roy did not appear before this grand jury and it was discharged before the investigation was complete, without the filing of an indictment against Marchand.
On April 26, 1976 Perkins was shown fifteen photographs by Agent Handoga and was asked to pick two that most closely resembled the people he had seen at the time of the marijuana transaction. He first picked three and later narrowed his choices to two. One was a photo of Marchand. Perkins testified at the suppression hearing that he did not feel he was being encouraged or pressured to select the photograph that he did but was not certain that the individual depicted was the supplier. Roy, according to his testimony at the suppression hearing, was in Colorado during this period. On his return to Vermont he was served with a subpoena to appear before the grand jury. Immediately before his appearance on July 1, 1976, Roy arrived at the office of the United States Attorney in Burlington and went to a small interview room accompanied by Agent Handoga and Assistant United States Attorney O‘Neill. Roy informed the agent that he had received the marijuana from someone named “Bob” or “Big Foot“. Agent Handoga showed Roy a series of 14 photographs. On his first and second viewings he selected a photograph of someone he thought to be Jim Hathaway of Burlington; he was told he was in error. On a third viewing Roy selected a photograph of Marchand but added “this picture looks funny.”6 The agent then produced a larger photograph of Marchand, interjecting “Oh, here‘s a Bob, what about this one?” Roy responded that the larger photograph “looks similar“. The agent then said “Ah, that‘s Marchand.”
In the afternoon Roy testified before the grand jury. We have already covered much of this testimony. Important additions were a statement that he had known the person with whom he and Perkins had communicated in order to buy the marijuana as “Bob” and a confirmation that he had selected the photograph of the person he believed to be Big Foot. After hearing Agent Handoga present his own observations and Perkins’ testimony before the earlier grand jury, the second grand jury returned an indictment against Marchand on July 22, 1976. An arrest warrant issued on the same day.
In the interval between Roy‘s appearance and the indictment, Timothy S. Hillman, a Massachusetts assistant district attorney who was to be called as a defense witness at trial for a reason that will later appear, came to Vermont. Marchand was a “civil client“. Hillman had had “occasion to hear that photographs of [his] . . . client had been shown to the Grand Jury” in Vermont.7 After talking with Roy, Hillman received “the impression that Victor had spoken to some people about an incident involving himself and some marijuana and that during the conversation he had had [sic] that Bob had been mentioned and the whole thing involved some sort of a transaction at the University of Massachusetts.”8 He had also received information
Some time after this, Marchand departed for the Miami area in Florida.9 Apparently the Government knew that he had, for it sent a photograph of Marchand to the Dade County, Florida, police and Agent Handoga spoke on the telephone to Detective Adcock of the Dade County police about Marchand.
This led to the final episode. At 7:30 a. m. on August 24, 1976, Special Agent Harris of the DEA office in Miami, accompanied by DEA Special Agent McGlassius and two Dade County detectives, Adcock and Sadler, went to the apartment of Robert Higgins in Lauderhill, Florida, to arrest Higgins pursuant to a federal arrest warrant on charges of sale and distribution of marijuana and conspiracy to import marijuana. The group was joined by a uniformed Lauderhill police officer outside the apartment, which had been under surveillance. Higgins answered the door and was placed under arrest. He informed the officers that another person was in one of the bedrooms. Marchand emerged, wearing only a pair of pants. Agent Harris asked one or more of the officers to ascertain his identity and make sure he was not armed.10 Marchand was allowed to return to his bedroom to don a shirt and was told that, although not under arrest, he could not leave the apartment but should remain seated in the dining room. Meanwhile Agent Harris had gone with Higgins to the latter‘s bedroom to watch him dress. While Harris was there, Detective Adcock advised him that Marchand was a fugitive from the District of Vermont. This conclusion was based on previous telephone conversations with Agent Handoga, prior observations of a photograph that had been sent to Miami, and inspection of a driver‘s license she had extracted from a wallet lying on the apartment‘s dining room table. Agent Harris further verified Marchand‘s identity by calling Agent Handoga in Vermont and then made the arrest. In the course of the arrest, Harris searched Marchand and removed a small address book and various papers and written notes from a rear pants pocket. One of the notes related to Marchand‘s conversation with Hillman; we reproduce this in the margin.11
II. The Suppression Motion
Marchand moved to suppress the photographic identification by Perkins and Roy and the note seized at the time of his arrest. Chief Judge Holden conducted a hearing and made findings of fact, on which we have relied in the previous section, and conclusions of law.
With respect to Roy‘s identification, the judge found that Roy had made no positive identification of Marchand and also that his identification, “such as it was” was “infected by suggestion.” Accordingly he granted the motion to suppress the evidence.
The judge also denied the motion to suppress the note seized on Marchand‘s arrest. Since we agree with his conclusion but not with his reasons, it is unnecessary to set out the latter.
III. The Trial
Perkins and Roy both testified to the marijuana transaction substantially as set forth in Part I of this opinion. Since there is no dispute that the transaction occurred, there is no need to repeat this.
Perkins testified to having given Agent Handoga the description of “Big Foot” set forth in Part I and supplemented this with a consistent description of the supplier as looking “very large. Very healthy. Very short hair, like a football player would look after he had been working out . . . [and dressed in] shorts or casual pants and T shirt” and tanned and unbearded.12 Over objection the Government introduced the sketch Perkins had drawn. Although testifying that he had been “trying to draw a picture of the person who gave [him] the marijuana,” cross-examination elicited a statement that he had testified at the suppression hearing “when I was drawing it I didn‘t really feel that it was anything,” and further
In my mind, I, when I was sketching it I just sat there for the longest time and didn‘t really know what to draw and that was just a—I just remember he was a great big, blond-haired guy and he just had big features. And I just drew a big-blond-haired, you know, male features.
He also acknowledged his earlier statement that he “didn‘t have a terribly good memory of [Big Foot] at the time he made the sketch” and said that when he was drawing it he “just [sat] there with a blank and just like I just drew it” and that when he finished it he was not satisfied that it was a fair and accurate picture of Big Foot. The jury was not bound, as counsel seems to believe, to credit Perkins’ disclaimer as against the excellence of his sketch; indeed it could have drawn quite a different inference. Comparison of the sketch with the photograph later selected by Perkins makes it almost impossible to suppose that Perkins had never seen the subject of the photograph.13
When asked to make an in-court identification, Perkins was unable to do this, perhaps for the reasons indicated in fn. 12, perhaps for others. He testified that two by-standers and Marchand who stood before him “resemble Bob, Big Foot in some way“; he thought there was “a good possibility” that if Big Foot were standing in front of him, he would be able to make an identification. The jury may have been more impressed by his slip of the tongue shortly thereafter when he was being cross-examined in regard to the sketch (App. p. 333):
Q. Now at the time you made it, you didn‘t have a very clear vision in your mind of what this Big Foot looked like, did you?
A. I never really did, except now when he was standing in front of me and it
We do not see how this can mean anything else than that the man “standing in front of” Perkins, namely, the defendant Marchand, was Big Foot.
Perkins admitted making the photographic identification but defense counsel brought out that the pictures were selected as being “closest” to his recollection and that he had made no positive identification. The court refused to give an instruction precluding the jury from relying on Perkins’ photographic identification as substantive evidence of Marchand‘s guilt.
The prosecutor also asked Perkins if he could remember Big Foot‘s phone number. When he could not, she gave Perkins the toll records for his phone for June and July 1975 to refresh his recollection. Perkins chose the number subsequently proved to be that of Ann Curtis and Bob Marchand, stating, “this could be it,” though he added on cross-examination that he could not be certain this was Big Foot‘s number.14
The prosecutor called Roy in an effort to secure an in-court identification.15 Roy didn‘t see Big Foot in the courtroom although “there‘s probably a number of people here that might look vaguely like him.” On cross-examination Roy picked out four people, including Marchand, all of whom “looked like this Big Foot” but added that Marchand “is not him.” The prosecutor
referred to Roy‘s grand jury testimony where he had named Marchand as the supplier. Instead of reading this, she proceeded, without objection as follows:
Q. And were you telling the truth to the Grand Jury that day?
A. Well, as I said before, I was misleading the Grand Jury to believe, influences,—
Q. Isn‘t it a fact, Mr. Roy, that you led the Grand Jury to think that you could identify Robert MARCHAND as the person who supplied you with the marijuana?
A. I guess that is what it came down to.
Q. And is that true, Mr. Roy?
A. Is it true that I misled the Grand Jury to believe that—
Q. Is it true that that is what you did, yes.
A. I would say, yes.
After acknowledging that the defendant was a friend, Roy was further questioned along the same lines:
Q. And yet you led a Grand Jury to believe that this person—this friend of yours, was the one who supplied you with marijuana, is that right?
A. Yes, that‘s what it came out to be.
The prosecutor also questioned Roy about who had accompanied Big Foot when Roy resumed acquaintance with him at a Brattleboro bar. Roy first answered “a girl. . . . I really don‘t know [her name]
Q. Do you recall that you testified in the grand jury that you saw Bob or Big Foot your supplier, with Ann?
A. That is the way the grand jury testimony reads.
Q. And is that the same Ann you know as a friend or companion of Mr. Marchand?
*
*
*
A. The Ann that I was referring to in there was.
Q. It was the same one?
A. (Nodding)
On cross-examination, Roy stated if there was a girl with Big Foot, he had never seen her with Marchand.
Agent Handoga testified with respect to Perkins’ photographic identification. He said that Perkins had been asked to identify the two persons who had sold the marijuana, not the two photos that looked “most like” them.
The Government concluded its case with the testimony of Agent Harris as to the note seized from Marchand at the time of his arrest. The defense case was limited to the testimony of Hillman seeking to explain this.
We shall defer to Part IV of this opinion a description of the prosecutor‘s summation and the charge and of defendant‘s points about them.
After returning to the courtroom with a request to hear Roy‘s testimony, the jury brought in a verdict of guilty.
IV. The Refusal to Suppress the Note Seized on Marchand‘s Arrest
We shall deal first with Marchand‘s claim that seizure from his person at the time of his arrest of the note relating to Hillman‘s meeting with Roy violated his rights under the Fourth Amendment since this issue is separable and, if defendant were right, a new trial would be required.16 If Marchand‘s arrest was legal, the search of his pants was likewise so. As said in United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973):
A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.
However, counsel stoutly contends that the arrest was illegal since it was based on the driver‘s license which Detective Adcock had obtained in the course of an unlawful search of the wallet that Marchand had left on Higgins’ dining room table.
If the arrest stemmed solely from the discovery of Marchand‘s name on the driver‘s license, we would be constrained to agree, particularly in light of the decision in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), rendered after this case was argued. But it did not. The trial court found that “Detective Adcock recognized the defendant from having seen his photograph” and that “She also recognized the defendant‘s name” which she apparently had obtained from the driver‘s license.17
A preliminary point should be cleared up before we proceed further. In a letter submitted after the argument, defense counsel raised the claim that the photograph to which the trial judge referred was on the driver‘s license. The finding is not worded that way and the testimony of Agent Harris was that Detective Adcock “stated she had seen a picture of this person before. . . .” (emphasis supplied).18 Further, there was no evidence that there was a picture on Marchand‘s driver‘s license. However, there was evidence, already mentioned, that a photograph had been sent to Detective Adcock, “a specially trained, assigned and experienced officer,” Manson v. Brathwaite, supra, 432 U.S. at 115, 97 S.Ct. at 2253, and the judge permissibly found that she had seen this before the visit to Higgins’ apartment.
We have no doubt that the photograph constituted probable cause for arrest without the reinforcement afforded by the discovery of Marchand‘s name. Here there was no need for the arresting officers to determine whether there was probable cause to believe that a crime had been committed and that a particular individual had committed it; that role had been performed by the indictment, Sciortino v. Zampano, 385 F.2d 132 (2 Cir. 1967), cert. denied, 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872 (1968). All that was required was probable cause to believe that the defendant was the subject of the Vermont indictment. Recognition of a photograph sent by the law enforcement officers from Vermont, supplemented by the discovery of the defendant living in the home of a Florida marijuana dealer, afforded such cause.
We thus face the question whether an arrest that would have been legal if effected on these bases alone became illegal because Detective Adcock improperly extracted Marchand‘s driver‘s license from the wallet lying on the dining room table, thereby learning his name and gaining added assurance.19 While we have found no federal authority squarely on this, we see no significant distinction between the question here presented and that arising where both legally and illegally obtained evidence have been offered to obtain a search warrant.20 The validity of the warrant was
When an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue. Wong Sun v. United States, [371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441], in announcing the “fruit of the poisonous tree” doctrine, limited the exclusionary rule to evidence which the police could not trace to some “independent” and lawful source. While the Supreme Court has not specifically had occasion to consider whether this doctrine is applicable to a search warrant that issues on the basis of an affidavit setting forth information both lawfully and unlawfully obtained, other circuits have applied the “independent source” test. If the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is admitted. 418 F.2d at 1151-52 (footnotes omitted).
This circuit had an early encounter with the problem in Parts Mfg. Corp. v. Lynch, 129 F.2d 841 (2 Cir.), cert. denied, 317 U.S. 674, 63 S.Ct. 79, 87 L.Ed. 541 (1942). There, certain auto parts alleged to have been stolen from Ford Motor Co. had been ordered returned as illegally seized, see Weinberg v. United States, 126 F.2d 1004 (2 Cir. 1942). Before they were returned, FBI agents gave Ford a detailed list of the property seized. Ford replevined the property, which was seized by a New York deputy sheriff and stored in a warehouse. The Assistant U. S. Attorney thereupon visited the warehouse, examined the parts, and subsequently obtained a search warrant, which was executed before Parts Mfg. Co. could retake the goods. It moved that the FBI special agent be required to return the goods because the search was based on information obtained as a result of the illegal first search. Judge Clark found that the Government had sufficient information, independent of any that was obtained illegally, to validate the search warrant. He stated further “Actual examination of the property in the warehouse . . . simply confirmed what affiants already had reasonable cause to believe would be found.” Id. at 843. Such confirmation did not dictate return of the evidence.
We discussed the taint problem more recently in United States v. Capra, 501 F.2d 267 (2 Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975), in the context of a warrantless search. There, the district court upheld such a search of the defendant‘s car on the grounds that one of the federal agents knew of defendant‘s prior use of his car for narcotics transactions and therefore had probable cause to believe that the car was carrying contraband. We noted that even if this agent‘s knowledge of defendant‘s uses of his car was derived from an illegal wiretap sixteen months before, another agent present at the search
Other circuits have held squarely that the presence of illegal evidence in affidavits presented for a search warrant does not prevent a finding of probable cause sustainable on other grounds. See United States v. Sterling, 369 F.2d 799, 802 (3 Cir. 1966) (“[T]he law is quite clear that the inclusion of illegally obtained evidence does not vitiate a search warrant which is otherwise validly issued upon probable cause reflected in the affidavit and based on proper sources.“); United States v. Tarrant, 460 F.2d 701, 703-04 (5 Cir. 1972) (where legally obtained information established probable cause, the court need not consider attacks on the legality or sufficiency of other allegations in the affidavits); United States v. Koonce, 485 F.2d 374, 379 (8 Cir. 1973) (where affidavit by one officer cited statements of two informants that defendant possessed a stolen boat and indicated the location of the boat from defendant‘s grand jury testimony, the court need not reach questions raised by search conducted by another officer); Chin Kay v. United States, 311 F.2d 317, 321-22 (9 Cir. 1962) (unnecessary to consider attacks on two paragraphs of affidavit since others sufficient to establish probable cause); Howell v. Cupp, 427 F.2d 36, 38 (9 Cir. 1970) (officer‘s finding stolen property in defendant‘s front seat provided probable cause for warrant to search trunk, not invalidated by previous illegal search of trunk which informed officers of the contents). Insofar as contrary dicta of the Sixth Circuit in United States v. Langley, 466 F.2d 27, 35 (1972), and United States v. Nelson, 459 F.2d 884, 889 (1972), may not be distinguishable as Mr. Justice Powell has thought them to be, see United States v. Giordano, 416 U.S. 505, 556 n.6, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (dissenting opinion), we continue to adhere to the majority view.21
It is true, of course, that if the sole guiding beacon in a Fourth Amendment case were the maximization of deterrence, all evidence obtained by illegal means in any significant part would have to be suppressed, even though there was a sufficient lawful basis for securing it. But the Supreme Court‘s decisions on other points of Fourth Amendment law demonstrate that it is not disposed to tilt the balance that far. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). On the basis of the attitude embodied in such decisions, the precedents here reviewed, and our own belief that a violation of the Fourth Amendment should not
V. Alleged Trial Errors
(1) Alleged errors concerning Perkins’ pre-trial photographic identification and sketch.
Appellant mounts a number of attacks relating to Perkins’ photographic identification.
His first claim is that the array was impermissibly suggestive because “the neutral effect of multiple numbers was totally undercut by the fact that Marchand‘s picture was the only one which recurred and that of the two large photographs his was the only one of a light-haired man.” (Brief, p. 52). The defense also criticizes the nine months delay in presenting the array, and the use of a photograph display rather than a lineup. We are not persuaded by any of these points. The small photograph of Marchand was somewhat marred by glare; also the larger photograph seems to depict him at a later age. See fn. 6 supra. Indeed, the photographs were sufficiently different to cause Perkins to select only one. Under such circumstances, over-representation of a defendant in the array does not make the procedure impermissibly suggestive, let alone give rise to “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). In Simmons, the Court allowed in-court identifications based on a showing of at least six photos, primarily group photographs, with the defendant appearing several times. See United States v. Falange, 426 F.2d 930, 935 (2 Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 149, 27 L.Ed.2d 144 (1970) (inclusion of three photographs of defendant, taken years apart and at different angles, in an array of 16 pictures was not a denial of due process); United States v. Cunningham, 423 F.2d 1269, 1271-73 (4 Cir. 1970) (admission of testimony concerning photographic identifications was not impermissibly suggestive although seven of 14 photographs were of appellants, and the only color photographs were of appellants and a codefendant).
The differences of hair and skin color noted by Marchand were not of great significance since all but three of the pictures were on black and white film. Nor did the differences in size of the pictures cause impermissible suggestiveness. As we have recently said:
The due process clause does not require law enforcement officers to scour about for a selection of photographs so similar in their subject matter and composition as to make subconscious influences on witnesses an objective impossibility.
United States v. Bubar, 567 F.2d 192, (2 Cir. 1977). See United States v. Magnotti, 454 F.2d 1140 (2 Cir. 1972) (full-view photograph of defendant in array with seven mug shots did not give rise to impermissible suggestion); United States v. Harrison, 460 F.2d 270 (2 Cir.), cert. denied, 409 U.S. 862, 93 S.Ct. 152, 34 L.Ed.2d 110 (1972) (that defendant was the only clean-shaven individual in photo array was not such an unnecessarily striking difference as to make him “stand out prominently from the others“). Although the delay was regrettable, it is not decisive, see United States v. Hurt, 155 U.S.App.D.C. 217, 476 F.2d 1164, 1168 (1973) (delay of one year); moreover, Agent Handoga testified that he had no photographs of Marchand until late 1975 or early 1976. While it is preferable for law enforcement officers to use a line-up rather than photographic identification when the suspect is available, this is not a requirement. United States v. Boston, 508 F.2d 1171, 1176-77 (2 Cir. 1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975).
Beyond all this, under Manson v. Brathwaite, supra, decided after this case was argued, even impermissible suggestiveness is not a per se bar to the receipt of a photographic identification; the admissibility of this must be determined on
The defense further contends that evidence of Perkins’ pre-trial photographic identification and of the making of the sketch was not within
The defendant further contends that the purpose of the Rule to allow introduction of more probative evidence than in-court identifications dictates exclusion of the uncertain and unreliable identifications by Perkins. We have already expressed our views with regard to the certainty of the photographic selection. The objection that the sketch should not have been admitted because of Perkins’ later disclaimer of it merits little discussion in view of what we have already said about the remarkable correspondence between it and the photograph and about Perkins’ telling slip of the tongue. But even if we felt otherwise with respect to these factual matters, we would not hold that the Rule requires exclusion of this evidence. Protection against identifications of questionable certainty is afforded by the requirement that the declarant be available for cross-examination; questions of the probative value of the testimony are thus for the jury. See S.Rep. No. 94-199, 94 Cong., 1 Sess. (1975), reprinted in 4 Weinstein & Berger, supra at 801-4. See also id. at 801-4.6. While the trial judge doubtless has discretion under
Appellant argues that even if the evidence was admissible as substantive evidence under
Appellant also objects to the court‘s having instructed the jury that it could “consider” Perkins’ photographic identification and sketch without having given the instruction requested by the defendant as to the dangers inherent in eyewitness identification. In United States v. Fernandez, 456 F.2d 638, 643-44 (2 Cir. 1972), we said:
While a defendant is not entitled to a reading of all that was said about the dangers of misidentification in United States v. Wade, supra, 388 U.S. [218] at 228-236, 87 S.Ct. at 1926, 18 L.Ed.2d 1149, and Simmons v. United States, supra, 390 U.S. [377] at 383-384, 88 S.Ct. at 967, 19 L.Ed.2d 1247, we would think it reasonable that a properly drafted instruction, drawing particularly on Mr. Justice Harlan‘s language in Simmons, should be given if requested. Whether failure to do so would constitute reversible error would depend upon the circumstances.
The reversal in that case rested on other grounds. Defendant has cited no decision holding that the giving of such a charge is mandatory, and a number have refused to do so. United States v. Evans, 484 F.2d 1178, 1187-88 (2 Cir. 1973); United States v. Gentile, 530 F.2d 461, 469 (2 Cir.), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); United States v. Barber, 442 F.2d 517, 525-26 (3 Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971) (noting “formidable precedential authority” that cautionary instruction is not required). This would be an exceedingly inappropriate case for seeking to make new law on this subject. The identifications were only a part of the case that Marchand was the supplier, a less important part than counsel would have us believe, and the circumstances were such that a cautionary instruction might have led the jury away from the truth rather than toward it.
(2) Alleged errors concerning Roy‘s grand jury testimony.
Defendant complains in regard to the Government‘s summation and the charge with respect to Roy‘s grand jury testimony. The complaints about the summation relate to statements that Roy “gave sworn testimony under oath to a Grand Jury that identified Bob Marchand as ‘Big Foot’ or Bob, the supplier” “he told the Grand Jury that this friend committed a felony; that this friend gave him 180 pounds of marijuana“; and he “told the Grand Jury that Bob Marchand was ‘Big Foot‘.” While Roy did not tell the grand jury in so many words that Bob Marchand was Bob or Big Foot, he did testify that the supplier was the Bob, also known as Big Foot (or vice versa), who was the same man he had known from Amherst, Mass., days, whom he remet in a Brattleboro bar with a girl named Ann and who had given him telephone numbers to call to purchase marijuana. Roy did in fact testify at trial, without objection, that he led the grand jury to think he could identify Marchand as the person who supplied him with the marijuana and that “this friend” was the man who supplied him with marijuana, which was indeed a felony. The motion for a mistrial was based not on any minor inaccuracies in the prosecutor‘s statements concerning the grand jury testimony but on
The charge was as follows:
Now if you find that the witness ROY on that occasion before the Grand Jury, did identify the defendant MARCHAND along with his girl companion ANN CURTIS as the same person as “Big Foot” whom he had previously seen with ANN CURTIS, you may consider his testimony to the Grand Jury as substantive evidence of the facts as he represented them to be in his testimony to the Grand Jury and this is so, although the witness ROY has stated he misled the Grand Jury and was not entirely truthful to that body.
It is for you the Jury to determine in the light of all the evidence in the case bearing on the question which testimony of ROY is true. His testimony at the trial, or his testimony before the Grand Jury in July of 1976.
The objection to this was:
Mr. Weinberg: Our first objection, Your Honor, would be, . . . the first objection, Your Honor, would be to your allowing the Jury to use Mr. Roy‘s Grand Jury testimony substantively.
We would object both because there was no evidence of an I.D. of MARCHAND in the Grand Jury that came out through the evidence.
Secondly, there were no statements within
Rule 801 .Third, because there couldn‘t have been any introduced because of the taint issue coming from the, your exclusion of the pre-trial photographic identification.
Moreover, I think Your Honor inadvertently invited the Jury to guess which is truthful by asking them to make that kind of decision.
I ask Your Honor to instruct the Jury they can‘t surmise, conjecture, or guess when Roy told the truth because there wasn‘t enough evidence to base that kind of judgment on.
The criticisms now made relate to the judge‘s characterization of Roy‘s grand jury testimony. These are that the only grand jury statements introduced before the trial jury referred simply to Ann and not to Ann Curtis and that nowhere in the grand jury testimony so introduced did Roy identify Marchand as Big Foot.
The Ann Curtis matter need not detain us. As previously stated, the Government had introduced portions of Roy‘s grand jury testimony in which he had referred to “Ann” as Big Foot‘s female associate. Roy admitted that the Ann he referred to before the grand jury was the same Ann who was Marchand‘s fiancée. The judge could reasonably conclude that Roy‘s subsequent testimony that he never in fact had seen the girl who was with Big Foot with Bob Marchand did not contradict his statement that the Ann he meant when he purportedly misled the grand jury was Marchand‘s fiancée. Further, if counsel had thought the reference to “Curtis” to be significant, it was his duty to bring this error to the attention of the judge who would doubtless have corrected it, United States v. Kahaner, 317 F.2d 459, 478-79 (2 Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963). Counsel could well have thought that doing so would only highlight the point.
With respect to the statement in regard to Marchand, we repeat what we have said about the summation. Grand jury testimony which was read to the jury did have the effect of identifying Marchand as Big Foot, as Roy seemed to recognize in his trial testimony. The judge could well have understood the objection to be that since the trial jury had not heard, and under his suppression ruling should not have heard, evidence of Roy‘s grand jury photographic identification, no use of Roy‘s grand jury testimony as substantive evidence was permissible. This simply was not so. Even if Roy‘s grand jury statements which were read to the trial jury were not admissible under
In view of this discussion, little need be said in regard to appellant‘s further contention that the Government‘s eliciting from Roy that he had misled the grand jury was a backhanded way of bringing before it the evidence of the photographic identification in violation of the judge‘s order and Marchand‘s due process rights. The jury heard nothing about Roy‘s photographic identification, and the judge evidently did not consider his order to have been violated. The former point suffices to dispose of the constitutional claim as well.24
In a footnote to his reply brief Marchand seems to suggest that it was error to allow the Government to ask the questions about misleading the grand jury at all, since
VI. Sufficiency of the Evidence
Although, as indicated, fn.3 supra, counsel for appellant argued sufficiency of the evidence as their initial point and included a great deal of discussion of rules of evidence in that argument, we have felt it necessary to deal first with their claims that much of the evidence was improperly received. Having held these to be without merit, we find the question of sufficiency relatively easy.
We start with the solid core of facts as to which there is no real dispute. Bob or Big Foot was the same man all along. He was Roy‘s friend at Amherst, Mass.; the renewed acquaintance at Brattleboro; the man with whom discussions about marijuana began at Springfield; the man who had a female associate identified before the grand jury as Ann; the man who engaged in two previous narcotics sales to Roy and Perkins; the man who gave Roy telephone numbers which Roy could call to purchase narcotics; and the man who sold the 180 pounds of marijuana on July 18. There were no Bob on the one hand and Big Foot on the other; the two were one and the same. Roy, Perkins or both made frequent calls just before the July 18 transaction to telephones listed in the names of Robert Marchand and Ann Curtis. Roy had meant to implicate Marchand before the grand jury, thought he had done so, and got word to Hillman.25 Hillman informed Marchand, who made careful note, including Roy‘s address, see fn.11, supra, and shortly departed
But there was. Perkins’ photographic identification was before the jury. To be sure, Perkins testified that he was asked to select the photograph that “most closely resembled” Bob or Big Foot, and the judge so found despite Agent Handoga‘s testimony that Perkins was asked to and did make a positive identification;26 and appellant relies in this connection on such photographic identification cases as United States v. Keller, 512 F.2d 182, 184 (3 Cir. 1975) (“a conviction cannot stand when it rests solely on an identification as uncertain as this one“), and United States v. Johnson, 427 F.2d 957, 961 (5 Cir. 1970) (where “sole witness is unsure and there are no other connecting or corroborating facts or circumstances” the jury cannot find guilt beyond a reasonable doubt). But these cases dealt with identification by victims who had only scanty opportunity for observation and where there were no corroborating circumstances.27 There were also Perkins’ description and, most important, his sketch. As
we have previously stated, the resemblances between this and the photograph which Perkins later identified are too strong for anyone to believe that Perkins could have drawn the sketch if he had never seen the subject. And Perkins was clear that he had seen the man he was drawing only in connection with the three narcotics transactions, never anywhere else. Despite what the jury could reasonably have deemed a charade about his inability to make a courtroom identification, there was Perkins’ inadvertent admission on cross-examination by defense counsel about the sketch that the man standing before him in the courtroom was indeed the man he had tried to draw. Also quite probative was Perkins’ selection, tentative though it was, from the scores of phone numbers listed in the toll records, of Marchand‘s number as the one at which Big Foot could be reached. Finally, there were the various changes of testimony by Roy and Perkins; far from the judge and the jury being bound to swallow the version most favorable to Marchand, they were free to believe, on the basis of self-contradiction and demeanor, that these witnesses were lying28 when they weakened their earlier statements and that the
We have carefully considered defendant‘s other claims of error but, except for the ones rejected in the margin,29 find them unworthy of discussion.
The judgment of conviction is affirmed.
On Petition of Appellant for Rehearing
PER CURIAM:
Appellant Marchand has filed a petition for rehearing, accompanied by a suggestion for rehearing en banc. This is limited to the portion of this court‘s opinion (Part IV, pp. 991-995) affirming the district court‘s refusal to suppress the note seized on Marchand‘s arrest in Florida. We deny the petition.
The basis for our upholding the denial of the suppression motion was that the officers in Florida had probable cause to arrest Marchand which derived from a clearly untainted source, primarily the photograph of Marchand previously sent them from Vermont, quite apart from the additional cause furnished by the unlawful extraction of a driver‘s license from Marchand‘s wallet.1
Not seriously disputing that untainted probable cause existed, Marchand argues that the Government had the burden of showing that the arrest would have been made if the illegally obtained evidence had not existed and that it did not meet this.
The argument would transpose to the situation here presented a principle with respect to burden of proof laid down in the usual “fruit of the poisonous tree” case, e. g., Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Cole, 463 F.2d 163, 171-74 (2 Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972); United States v. Falley, 489 F.2d 33, 40-41 (2 Cir. 1973), and United States v. Ceccolini, 542 F.2d 136, 140-41 (2 Cir. 1976), cert. granted, 431 U.S. 903, 97 S.Ct. 1693, 52 L.Ed.2d 386 (1977), where the prosecution, having first obtained tainted evidence, must demonstrate that evidence thereafter developed did not stem from the evidence illegally obtained. Here the sequence was the opposite. When lawfully obtained evidence is sufficient to justify an arrest and an incidental seizure, a defendant suffers no violation of constitutional rights merely because an officer might not have made the arrest but for the additional proof furnished by evidence which he later obtained illegally. The Fourth Amendment protects against an arrest without probable cause derived from evidence legally obtained; it does not confer a further protection against the possibility that a particular officer might not have done what he lawfully could. Cf. United States v. Capra, 501 F.2d 267, 280 n.12 (2 Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975). The Government thus had no such burden as defendant would place upon it. In the search warrant cases cited in our opinion, the courts did not require the Government to show that the warrant would in fact have issued, or even would have been sought, on the basis of the legally obtained evidence alone; it was enough, in Judge Leventhal‘s words, “[i]f the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information . . . ,” James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150, 1152 (1969) (emphasis supplied). See also United States v. Koonce, 485 F.2d 374, 379 (8 Cir. 1973) (if the affidavit of one officer, by itself, “would be enough to support a magistrate‘s finding of probable cause,” the illegal search by another officer need not be considered (emphasis supplied)). We see no basis for the challenge by appellant‘s counsel to the analogy of these cases. The flaw is rather in invoking as an analogy cases where, but for the illegality, the untainted evidence justifying an arrest might not have been obtained at all.2
The petition for rehearing by the panel is denied.
Notes
-pictures of Ann & Bob
-met me at U Mass Bar
approx
|
o
Warren-
2d house after P.O.
Mars Hotel
Victor Roy testified at trial that his home in Warren, Vermont, was two houses down from the post office.
The application for the October 22 extension attached the logs of telephone conversations monitored under the October 16 order and asserted that these logs revealed the “continued use of the telephone . . . for conversations regarding illegal trafficking in narcotics.” App. 55. In these circumstances, it appears to us that the illegally monitored conversations should be considered a critical element in extending the pen register authority. We have been furnished with nothing to indicate that the pen register of November 6 should be accorded any different treatment. We think the Court clearly meant that the extension order could not have been granted absent the illegal evidence.Reference should perhaps be made to cases in this circuit where a tax “saturation investigation” was launched partly from legal and partly from illegal leads. Any implication from language in United States v. Schipani, 414 F.2d 1262, 1266 (2 Cir. 1969), cert. denied, 397 U.S. 922, 90 S.Ct. 902, 25 L.Ed.2d 102 (1970), that an indictment stemming from such an investigation should be dismissed—and we doubt whether such an implication was ever justified—has been dissipated by United States v. Friedland, 441 F.2d 855 (2 Cir.), cert. denied, 404 U.S. 867, 914, 92 S.Ct. 143, 239, 30 L.Ed.2d 111, 188 (1971), and United States v. Cole, 463 F.2d 163, 172 (2 Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972).